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States Rights Issues False Label in Schiavo Case
Conservatives Confused and Wrong
By Wayne B. Holstad, JD
A recent editorial in the Los Angeles Times instructed Chief Justice Rehnquist to stay away from the Terry Schiavo case as some weird form of penance for his involvement in the Bush v. Gore litigation in 2000. The Times editorial is consistent with a near-unanimous viewpoint, among liberals and conservatives alike, that federal intervention to protect an individual from state law injustice is hypocritical and somehow inconsistent with the idea that conservatives are supporters of state’ rights. The editorial evidences a lack of research into the Chief Justice’s prior rulings on the subject and I do not understand the origin of the conservatives’ states rights concerns.
In 1999, I brought a lawsuit based on the federal civil rights act in federal district court in Minnesota. I alleged that the religious rights of my clients, 47 Catholic and Protestant taxpayers, were violated by being required to subsidize abortions on demand pursuant to the Minnesota Supreme Court’s Order in the 1995 Doe v. Gomez case. I argued that (1) because of the way that Doe v. Gomez was handled in state district and Minnesota Supreme Courts, the procedural due process rights of religious taxpayers were violated.
I also argued (2) that the holding in Doe v. Gomez was contrary to the Hyde Amendment, a Congressionally enacted law. Furthermore, it was contrary to the holdings of the United States Supreme Court that upheld the Hyde Amendment. I argued that the state courts were not permitted, under proper principles of federalism, to simply rewrite or reinterpret their own state constitutions to achieve a contrary and purely political state result. Obviously, my case looked a lot like Bush v. Gore. Since that time, I have been surprised and disappointed at the lack of support and understanding from conservatives and Republicans alike for what I view as the historic conservative view of federalism.
Republicans and conservatives show a lack of understanding of the Republican Party’s own history and the current view of federalism as articulated by the Supreme Court, principally from Chief Justice Rehnquist’s own decisions. Alleging that state courts in Doe v. Gomez deprived religious taxpayers of their right to procedural due process in a federal civil rights issue in federal courts, I cited a Supreme Court case titled Daniels v. Williams. It involved a federal civil rights intervention in state court proceedings, arguing that that fair justice and good government were guarantees to all United States citizens. (A note to the L.A. Times editorialists: the case dated 1986 and the author of the opinion was Chief Justice Rehnquist.)
At oral argument in the 8th Circuit Court of Appeals, the one conservative judge on the three-judge panel asked me directly how I could justify a federal court intervention in a state’s interpretation of its own constitution. I cited a 1996 Supreme Court case, Ohio v. Robinette, which cited another routine criminal law dispute from 1983, Michigan v. Long. It established as a principle of federalism that when a state court makes up its own constitutional law, without resorting to the history or tradition behind the text of its own constitution, and merely substitutes its own opinion about the federal constitution, then calling it state law, the federal court should simply disregard the state court’s opinion; in this situation the federal court was free to interpret the facts de novo and apply federal law as the federal courts had already decided. The author of that principle? Chief Justice Rehnquist.
Every time I hear it said that conservatives and Republicans believe in states’ rights I wonder what Civil War to which they refer? I know that Republicans opposed the New Deal. I have read and written about New Deal cases. They involved individuals suing to prevent the encroachment of the federal Leviathan on individual property and contract rights. The only reference to states’ rights was an observation in one of the dissenting opinions that that the Tenth Amendment no longer had a useful function.
Opposition to national regulation by Congressional use of the Commerce Clause to expand its power has nothing to do with, and is actually the opposite of, federalization of individual, inalienable rights. Please remember, Abraham Lincoln was a Republican, so feared by the southern Democrats that they seceded from the union when Lincoln was President, and so reviled by northern Democrats they opposed, until the 1864 election, everything Lincoln did to end slavery. It was after the 1864 election, the assassination of Lincoln, and the end of the Civil War, that the Republicans had enough political power and will to pass the 14th Amendment. That Amendment federalized fundamental individual rights. (A note to lawyer-hating conservatives: The 14th Amendment would have had little impact if the Republican Congress had not also passed the Civil Rights Act enabling the federal courts to hear lawsuits by private litigants.)
The Terry Schiavo case has now reinvigorated another passionate and important national debate over fundamental constitutional principles. It is about whether the courts will protect life by guaranteeing basic procedural due process, and it raises important fundamental principles about federalism and due process.
Is there a presumption in favor of life or a bias in favor of death? How can hearsay evidence presented to prove an intent to want to die overcome longstanding rules of evidence and principles of properly constructing a will? How can a declaration that she is brain dead overcome the evidence from numerous medical experts that rehabilitation could improve her life? How can medical declarations overcome what we have now all seen with our own eyes? Why shouldn’t the peoples’ elected representatives get involved to correct injustices?
Now that the federal courts have almost unanimously told the President and Congress to “mind their own business,” maybe Congress should reread their Jefferson, Jackson and Lincoln histories, and once again engage in the civil rights discussion. Let’s look at the whole issue de novo. Let’s have a serious discussion and review of the Slaughterhouse Cases, The Civil Rights Cases, Yick Wo v. Hopkins, and the undecipherable 11th Amendment decisions that shackle civil rights litigants and do not fit into the accepted 14th Amendment “pigeonholes” that only the courts have approved.
Individuals need to be able to vindicate their individual rights in federal court. The misstatements about states rights and court supremacy repeatedly used to defeat Terry Schiavo’s lawyers, and to neutralize conservatives, should be exposed as pure nonsense with no support in legal theory or history. What we have today is not what the President and Congress intended during the 1860s. The courts have stood in the way. The President and Congress should look at this again, and while doing so, be sure to review some of the Chief Justice’s opinions. He is not the problem.